Institutional Controls at Contaminated Sites: Best Practices for Counsel in Implementing, Maintaining and Enforcing ICs

Recording of a 90-minute CLE webinar with Q&A

Conducted on Tuesday, July 16, 2013

Recorded event now available

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Program Materials

This CLE webinar will provide guidance for counsel to companies planning, implementing, maintaining and enforcing institutional controls (ICs) at contaminated sites to minimize legal risks.

Description

To reduce or eliminate harmful exposure to hazardous substances, temporary or permanent institutional controls (ICs) are put in place at contaminated sites. While ICs often reduce the cost of cleanup, to minimize the environmental liability exposure to prior or current property owners, ICs need to be effective and complied with.

Capping off an active year for IC guidance and standards, in Dec. 2012 the EPA issued revised guidance relating to the use of ICs at Superfund and other contaminated sites. EPA and similar state and industry guidance highlight IC issues that counsel must evaluate, beginning early in the cleanup process and potentially continuing throughout the term of the IC.

Environmental counsel to companies need to understand the legal risks from the contaminated sites, when and how to implement ICs, and what needs to be done to ensure IC tools are effective and complied with.  Among other risk management issues, complying with ICs is an element of CERCLA liability defenses.

Listen as our authoritative panel reviews the EPA guidance on ICs and discusses implementing the ICs as well as evaluating their effectiveness throughout the life of the ICs. The panel will also offer best practices for monitoring and enforcing ICs.

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Outline

  1. Institutional controls (ICs) brief overview
  2. EPA guidance/new developments on ICs
    1. Institutional Controls: A Guide to Planning, Implementing, Maintaining and Enforcing ICs at Contaminated Sites
    2. Institutional Controls: A Guide to Preparing IC Implementation and Assurance Plans at Contaminated Sites
    3. Recommended Evaluation of Institutional Controls: Supplement to the Comprehensive Five-Year Review Guidance
  3. State developments—laws, regulations and guidance on ICs
    1. IC implementation approaches
    2. IC monitoring and auditing approaches
    3. State IC registries
    4. New and novel state approaches
  4. Brownfields Amendments of 2002, ASTM guides, and other resources relating to ICs
    1. Land use restrictions (LURs)/IC compliance necessary for CERCLA landowner liability protections (LLPs) under the 2002 Brownfields Amendments
    2. Limited guidance or case law on what these LLP obligations mean; brief discussion of the Ashley II decision
    3. ASTM E2790-11—Standard Guide for Identifying and Complying with Continuing Obligations, as a tool to help understand LUR/IC compliance approaches.
    4. ASTM E2091-11—Standard Guide for Use of Activity and Use Limitations, Including Institutional and Engineering Controls
    5. EPA “Common Elements” Guidance (discussing LUR and IC LLP matters).
    6. Implementing Institutional Controls at Brownfields and Other Contaminated Sites (ABA 2nd ed., 2012)
  5. Emerging IC issues
    1. IC costing and regulatory fees: recently issued Association of State and Territorial Solid Waste Management Officials (ASTSWMO) framework for estimating IC costs
    2. Controlled Recognized Environmental Conditions (CRECs): a new term under the ASTM Phase I ESA Standard Practice, and what this means
    3. Other Emerging Trends

Benefits

The panel will review these and other key questions:

  • What factors should counsel consider when determining which ICs are to be implemented?
  • What steps can counsel recommend to ensure an existing control is effective and complied with?
  • What framework does the EPA guidance and ASTM industry guidance offer to ensure the requirements for implementing ICs are met?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Faculty

Amy L. Edwards
Amy L. Edwards
Partner
Holland & Knight

She counsels clients about effective strategies for structuring real estate and corporate transactions to minimize...  |  Read More

J. Michael Sowinski, Jr., J.D.
J. Michael Sowinski, Jr., J.D.
Vice President
Terradex

He brings nearly 20 years of engineering and legal experience on environmental cleanup, environmental compliance,...  |  Read More

James Miles
James Miles
EPA

He focuses on policy and guidance development relating to CERCLA and RCRA corrective action enforcement, and in...  |  Read More

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